​The Fund announced that JORDANA SARRELL, P.A., has been named a Member of The Fund’s President’s Circle for 2017. The Fund's President's Circle is an elite group of the top 100 Member firms based on the policies remitted in 2017.

First let us start with the basics - what is a boundary survey?  

A boundary survey is, in the most basic of terms, a drawing, map of the property showing precisely where the house lies within the boundary lines, the patio and/or additions as well as the locations easements and/or encroachments, if any.  The survey will confirm the legal description of the property, disclose any encroachments, easements or rights of way (drainage easements, sewer easements, etc) and pinpoint locations of fences, driveways, and other relevant information pertaining to the property being purchased.  A common type of encroachment is a utility easement running through a driveway or rear of the property given to the local utility agency for maintenance of water lines, sewer lines, cable, etc.  The survey also confirms legal access (ingress/egress) to the property.  

Lenders, in literal terms, do not require a survey.  Yes, that is true.  Lenders do however, require that the title agent issuing the lender's title policy delete the survey exception which is a standard exception on all title policies and provide a Florida Form 9 / ALTA 9 endorsement to the lender's title policy issued at the closing of the loan.  

Lenders are in need of more comprehensive title insurance coverage and require affirmative coverage over any matters shown on the survey that could interfere with their secured interest (the property).  Such matters are protected by the issuance of the ALTA 9 endorsement.  Examples of which include coverage for loss due to incorrectness of assurance that certain matters do not exist (violations of zoning laws), violations of platted setback lines, encroachments, encroachments of improvements onto easements, etc.  In simple terms, should an encroachment or setback pose issue and compromise the integrity of the lender's interest in the secured property, the endorsement will allow for the lender to make a title insurance claim to protect their interest.  Without the endorsement, the lender is subject to loss of part or some of their secured collateral (the property) due to an encroachment or setback violation, etc.  

Even in cash transactions, a survey should always be purchased by the buyer because it provides assurances to the buyer for a variety of matters.  It allows the buyer to determine if there are any title matters disclosed on a survey that render the title unmarketable, confirms that boundary lines and legal descriptions, and provides notice of any encroachments onto the property by way of easements or other rights of way that will interfere with your property lines.  For example an easement in the rear of your property for a utility company that is 5 feet into your property line will prevent you from putting up a fence at the edge of your property line and require the fence be 6 feet from the property line.  It helps you discover that the fence line is not the true property line.  

Below is an example of a survey which shows a 6 foot easement along the western boundary line; 10 foot utility easement running through the driveway and the fence not actually within the boundary lines of the property (in the rear).  

​Why do I need title insurance?
I cannot even tell you how many times that I have been asked that question.
The truth is most people don't know what title insurance is and I do not blame them, I did not know what it was when I bought my first home!
So we have summed up exactly what is title insurance and why you need it in a few succinct points:
Title insurance is NOT casualty insurance. Title insurance protects the new owner (and lender, if any) from any liens, encumbrances, or claims against the property that originated prior to their ownership.
For example: A buys a home from B and B had a home equity line of credit. B was a bad boy. B withdrew the entire line of credit the day of closing! Now A has a valid and enforceable mortgage against A's new home. But A was smart and purchased an owner's title insurance policy which now protects A's interest in the home and is liable for the balance of the equity line of credit.
Another example: A sells his primary residence aka homestead to B. A is married but A's spouse did not sign the deed. Florida law requires spousal joinder on conveyance of homestead property. So now B's title (deed) is defective. B must now place a claim with his title insurance policy to secure a corrective deed so that B can sell or mortgage/encumber the property as B wishes.
Title insurance protects your equity in your home up to the full amount of the price for which the home was purchased. Title insurance is absolutely necessary. Spend a few dollars now to save a lot of dollars later.

Although the checklist below is by no means comprehensive, it is a good start.  Buying at the foreclosure auction is a risky business!  With the right knowledge and diligence, buying a property at the foreclosure auction riddled with title defects can be avoided.  Schedule an appointment with our title defect specialist, Jordana Sarrell, Esq., LL.M., to discuss the benefits and downfalls of foreclosure properties and how to protect your interest and money! 

1. Establish the Chain of Title 
   1. Is the deed vesting title in borrowers executed properly?  Spousal joinder or non-homestead language; properly witnessed, etc.
   2. Verify the legal description and title owners 
      1. Verify the legal description matches across the board (the deed, mortgage, Lis Pendens in foreclosure action, the judgment, etc.)
      2. conduct a name search in the public records to search for judgments against homeowners that does not attach to the legal description (IRS liens, Domestic Support Obligations, other monetary judgments)
   3. Ensure you are buying a FIRST mortgage!  Florida follows this basic recording law to establish lien priority: "first in time first in right"
   4. Are all prior mortgages properly satisfied?  
2. Review the Foreclosure Docket!
   1. Are the proper defendants named?
      1. Borrowers
      2. Junior Liens: judgments against homeowners for credit cards, domestic support obligations, second mortgages, HELOCs, etc. 
      3. Howeowner's Association or Condo Association 
      4. IRS Liens
      5. "Unknown Spouses"
      6. County/City (code liens)
      7. Unknown Tenants or Known Tenants
   2. Is the borrower dead or alive?  If dead, is there a probate and the estate and Personal Representative of the Estate served?  If no probate, were the unknown heirs of the estate named and had an Administrator Ad Litem appointed to protect their interests?
   3. Have all parties been properly served?  Personal, substitute or constructive service?
   4. Has the original promissory note been deposited in the court registry?  If not, was a count to re-establish the lost note pled?
   5. Is the foreclosure being contested?  If yes, then you may have issues arise after the sale.
3. Have you checked the real estate taxes?  There may be a few years of delinquent taxes you will be responsible to assume if you purchase property!  
4. HOA/CONDO Liens: are they recorded?  Does the Declaration of Covenants, Conditions and Restrictions limited a third party purchaser at a judicial sale's liability?  
5. Other Miscellaneous Judgments and Liens exist?
6. The Final Judgment of Foreclosure: 
   1. Contains proper legal description 
   2. Establishes the lien of the bank foreclosing is superior to all other interests named and said interests are eliminated by virtue of the judgment
   3. Upon issuance of the Certificate of Sale the right to redemption expires
   4. Upon issuance of the Certificate of Title, the purchaser is entitled to possession by way of a writ of possession
7. The Foreclosure Sale:
   1. Was a Notice of Sale Published? 
   2. Is the Sale online?  Are you properly registered with the deposit in the court registry? 

Want to know what you do if a problem arises when going through these checklist items? It is essential to conduct a full and thorough search behind and through the foreclosure to safeguard against buying problematic or defective title at the foreclosure auction.  A real estate attorney should be consulted for guidance and advice.  
The checklist above is NOT a comprehensive checklist and is not intended to serve as a guide to buying property at the foreclosure sales.  The checklist is for informational purposes only.  For a more thorough and detailed analysis and checklist, contact SSB LAW today!